45 U.S.

225
4 How. 225
11 L.Ed. 949

THE AGRICULTURAL BANK OF MISSISSIPPI AND

OTHERS,
PLAINTIFFS IN ERROR,
v.
CHARLES RICE AND MARY HIS WIFE, AND MARTHA
PHIPPS, DEFENDANTS.
January Term, 1846

THIS case was brought up, by writ of error, from the Circuit Court of the
United States for the Southern District of Mississippi.
It was an ejectment brought by the defendants in error against the
Agricultural Bank and others, to recover two undivided third parts of a lot
of ground in the city of Natchez, bounded as follows:fronting on Main
Street, between Canal and Wall Streets (formerly Front and Second
Streets), beginning on Main Street, at the corner of a lot owned by the
heirs of Samuel Postlethwaite, on which a large new cotton-warehouse has
been erected; thence along the northwestern side of Main Street, west, to
the line of the lot bequeathed by Adam Bower, deceased, to his widow,
now Mrs. Pendleton; thence north, along the eastern line of the said lastmentioned lot, to the back line of the said premises, where the same
bounds on the property formerly owned by Elijah Bell; thence along said
last-mentioned line, to the line of the lot belonging to the heirs of said
Postlethwaite; and along said last-mentioned line to the place of
beginning, on Main Street; and being the same property now known as
the City Hotel, in Natchez.
The plaintiffs below claimed the lot as the heirs and devisees of Adam
Bower, deceased, who died seized of the property, and the only question
in the case was, whether or not they had conveyed away their title in the
manner prescribed by law.
The circumstances are so fully set forth in the bill of exceptions, that a
recital of the bill will be sufficient. The cause was tried at May term,
1843, when the jury, under the direction of the court, found a verdict for

the plaintiffs.
Bill of Exceptions tendered by the Defendants.
Be it remembered, that on the trial of this cause, and while the same was
before the jury, the said plaintiffs, by their counsel, to maintain and prove
the said issue on their part, gave in evidence and proved that one Adam
Bower (now deceased), in his lifetime, previous to the year 1833, was
seised in fee of a certain lot or parcel of land in the said declaration, and
hereinafter described. That on the 16th of April, 1833 the said Adam
Bower, being so seized of said land, died, leaving three daughters, to wit,
Martha Phipps, wife of William M. Phipps; Mary Haile, wife of William
R. Haile; and Sarah Bower, a feme sole, his heiresses, who took and
inherited under the last will and testament of the said Adam Bower the
said fee of the said land. That the said Martha, Mary, and Sarah, at the
decease of the said Adam Bower, were infants under the age of twentyone years. That since the death of the said Adam Bower, the said William
M. Phipps and William R. Haile have both departed this life, and that
since the death of the said William R. Haile, Mary Haile, his widow, has
intermarried with Charles Rice, one of the plaintiffs. That at the time of
the commencement of this suit, the said defendants were in possession of
said premises, holding the same adversely.
The plaintiffs' counsel here rested.
Whereupon, the counsel for the said defendants, to maintain and prove the
said issue on their part, gave in evidence, that after the death of the said
Adam Bower, and while the fee of the said land
'Witnesses,THOS. THOMAS. Mary, and Sarah, the said Noah Barlow
and one Henry S. Holton contracted with the said heirs and their husbands
aforesaid for the sale and purchase of the said lands, and in consideration
that the said heirs would make and insure to them a good and valid title in
fee simple to the said land, they agreed to give and pay to the said heirs
for the same the sum of $40,000; $5,000 whereof should be paid in hand
on the delivery of possession, and the residue should be secured to be paid
in instalments, to be specified, in promissory notes, to be executed by the
said Holton, and indorsed by the said Barlow, and by a mortgage on the
said land. That the said Holton and Barlow, in pursuance of the said
contract, paid the said $5,000 to the said heirs, and delivered to them
twelve promissory notes for $2,916.66 1/3 each, all bearing date the 16th
day of April, 1835, and payable as follows: three of said notes in twelve
months, three others in two years, three others in three years, and the other

three in four years from the date thereof; and made by the said Henry S.
Holton, and indorsed by the said Noah Barlow. And the said heirs, upon
receipt of the said notes and the said sum of $5,000, delivered to the said
Henry S. Holton and Noah Barlow possession of the said land, with the
tenements and appurtenances, and at the same time executed to the said
Holton and Barlow a bond for title, in and by which said bond the said
heirs agreed and bound themselves, and their heirs, to make, execute, and
deliver, after duly acknowledging the same, a full and complete general
warranty deed of all said premises and appurtenances, buildings and
furniture, to the said Holton and Barlow, their heirs and assigns, thereby
covenanting a good and indefeasible title to said lot of ground to said
Holton and Barlow, their heirs and assigns, against all persons, as soon as
a surveyor can be had to make a survey of the premises to ascertain the
exact boundaries. That the said bond was executed by the said Sarah, as
Sarah Gibson, and by her husband, David H. Gibson, the said Sarah
having intermarried with the said David H. Gibson between the drafting
of the said bond and its execution; which said bond is in the words and
figures following, to wit:
Agreement entered into and executed this ___ day of April, 1835, between
William M. Phipps and _____ his wife, William R. Haile and _____ his
wife, and Sarah Bowers, parties of the one part, and Noah Barlow and
Henry S. Holton, parties of the other or second part; the above-named
parties of the first part, for the consideration hereinafter named, agree this
day to deliver to said parties of the second part full possession of the
tenements, tavern, stables, and other buildings occupied and owned by the
late Adam Bower, and heretofore also occupied since his death by the
said William M. Phipps, and the lot or parcel of ground upon which the
same stands, being on the north side of Main Street, between Canal and
Wall Streets, in said city of Natchez; and also the furniture, kitchen and
household, as well as that about the stables, and belonging to and in said
tavern, buildings, and said premises; and said parties of the first part do
further, for the consideration hereinafter named, agree and bind
themselves, and their heirs, to make, execute, and deliver, after duly
acknowledging the same, a full and complete general warranty deed of all
said premises and appurtenances, buildings and furniture, to said parties of
the second part, their heirs and assigns, thereby conveying said lot of
ground, appurtenances, and buildings, and said furniture, and warranting a
good and indefeasible title thereto to said parties of the second part, their
heirs and assigns, against all persons, as soon as a surveyor can be
obtained to make a survey of said premises, so as to ascertain the exact
extent and boundaries of said premises. In consideration of which, said
parties of the second part agree to pay this day to said parties of the first

part five thousand dollars, and upon the execution and delivery of the said
deed to them as aforesaid, they, the said parties of the second part, their
executors or administrators, will execute and deliver to said parties their
promissory notes for thirty-five thousand dollars, payable in one, two,
three, and four years, in the following manner,to be secured by a
mortgage executed by said parties of the second part, and their wives, on
said premises, to wit:
WM. M. PHIPPS. [L. S.]
MARTHA PHIPPS. [L. S.]
W. R. HAILE. [L. S.]
MARY HAILE. [L. S.]
D. H. GIBSON. [L. S.]
SARAH GIBSON. [L. S.]
That the said bond, though apparently incomplete, was executed as
complete, and the notes were secured by mortgage by said Holton and
Barlow, according to said contract. That after the execution and delivery
of said bond and notes, and when the said Holton and Barlow were in
quiet possession of the premises, they handed said bond to their counsel,
with instructions to have a deed drawn in compliance with said bond, and
on or about the 14th of September, 1835, received from their counsel an
instrument in writing, or deed, without examining the same, all parties
supposing it to be correct, and in conformity with their directions; that the
said deed was executed and delivered on the said 14th of September,
1835, by the said heirs and their respective husbands. And it was intended
by said heirs to convey to said Holton and Barlow the complete title of the
said heirs and their husbands in said land, which said deed is in the words
and figures following, to wit:
This indenture, made the 14th day of September, in the year of our Lord
one thousand eight hundred and thirty-five, between William M. Phipps in
right of his wife Martha, William R. Haile in right of his wife Mary, and
David H. Gibson in right of his wife Sarah, legal heirs and representatives
of Adam Bower, deceased, of the county of Adams and State of
Mississippi, of the one part, and Noah Barlow and Margaret his wife, and
Henry S. Holton and Theoda his wife, of the same place, of the other part,
witnesseth: that the said parties of the first part, for and in consideration of
the sum of forty thousand dollars, to them in hand paid by the said parties

of the second part, at or before the sealing and delivering of these

presents, the receipt whereof is hereby acknowledged, and the said parties
of the second part, their heirs, executors, and administrators for ever
released therefrom, by these presents have granted, bargained, sold,
conveyed, and confirmed, and by these presents do grant, bargain, sell,
convey, and confirm unto the said parties of the second part, their heirs
and assigns for ever, all that certain lot or parcel of ground situate in the
city of Natchez and State aforesaid, fronting on Main Street, between what
were, before the confusion of names produced by the wisdom of the city
council, Front and Second Streets, which said lot is bounded and
described as follows, to wit:beginning on Main Street, at the corner of a
lot now owned by the heirs of Samuel Postlethwaite, on which a large
new cotton-warehouse has been erected by Harriett _____, along the
northwestern side of Main Street, west, to the line of the lot bequeathed by
Adam Bower, deceased, to his widow, now Mrs. Pendleton; thence north,
along the eastern line of said last-mentioned lot, to the back line of the
premises hereby conveyed, where the same bounds on the property of
Elijah Bell; thence along said last-mentioned line to the line of the lot
belonging to the heirs of said Postlethwaite; and along said last-mentioned
line to the place of beginning on Main Street; the lot hereby conveyed
being the large tavern establishment occupied by said Bower in his
lifetime, and since his death by the said William M. Phipps; also, all the
household and kitchen furniture, and apparatus, and utensils about said
tavern, stables, or other buildings on said lot; together with all and
singular, the appurtenances, hereditaments, privileges, and advantages
whatsoever unto the above described premises belonging, or in any wise
appertaining; and also all the estate, right, title, interest, and property, and
claim whatsoever, either at law or in equity, of them the said parties of the
first part, of, in, and to the same; to have and to hold the above granted,
bargained, and described premises, with the appurtenances, unto the said
parties of the second part, their heirs and assigns, forever; and the said
parties of the first part, for themselves, their heirs, executors, and
administrators, do covenant, grant, promise, and agree to and with the said
parties of the second part, their heirs and assigns, that they, the said
parties of the first part, and their heirs, the above described and hereby
granted premises, and every part thereof, with the appurtenances, unto the
said parties of the second part, and their heirs and assigns, against the said
parties of the first part, and against all persons or claiming, or to claim
said premises, or any part thereof, shall and will warrant, and by these
presents for ever defend.
In witness whereof, the said parties of the first have hereunto set their
hands and seals, this day and year above written.

WM. M. PHIPPS. [L. S.]

MARTHA PHIPPS. [L. S.]
WILLIAM R. HAILE. [L. S.]
MARY HAILE. [L. S.]
DAVID H. GIBSON. [L. S.]
SARAH GIBSON. [L. S.]
Signed, sealed, and delivered in the presence of
N. W. CALMES, J. P.THE STATE OF MISSISSIPPI, Adams county:
Personally appeared before the undersigned, justice of the peace for said
county, William M. Phipps and Martha his wife, and William R. Haile and
Mary Haile his wife, and David H. Gibson and Sarah Gibson his wife, and
acknowledged that they signed, sealed, and delivered the within deed on
the day and year and for the purposes therein contained. And Martha
Phipps, Sarah Gibson, and Mary Haile, wives of William M. Phipps,
William R. Haile, and David H. Gibson, having been examined separate
and apart from their husbands, and acknowledged that they signed, sealed,
and delivered the same as their act and deed, free of fears, threats, or
compulsion of their said husbands.
Given under my hand and seal, this 15th day of September, 1835.
N. W. CALMES, J. P.

Received for record, 15th September, 1835.

F. WOOD, Clerk.

By S. WOOD, D. Clerk.
STATE OF MISSISSIPPI, Adams county:

I, Fleming Wood, clerk of the Probate Court for said county, do hereby certify
that the within deed is recorded in my office, in book W of the record of deeds,
pages 300 and 301.

Witness my hand and seal of office, this 16th day of September, anno domini
1835.

F. WOOD, Clerk.

By S. WOOD, D. Clark.

[L. S.]

That in the said deed, by a mistake of the draftsman, the said heirs, Martha,
Mary, and Sarah were not named as grantors, but that only their several
husbands are so named, although said deed is executed by said heirs and their
husbands.

10

That on the 14th day of September, 1835, on the delivery of said deed, the said
Holton and Barlow executed, acknowledged, and delivered to the said heirs and
their several husbands a deed of mortgage on said land, to secure the payment
of said notes according to said contract, and the said notes and mortgages were
accepted by said heirs and their husbands. That at the time of the marriage of
the said Mary Haile with the said Charles Rice, in the year 1838, said Holton
and Barlow were in quiet and peaceable possession of the said land, and
ignorant of any objection to their title. That the buildings on said land, at the
time of the purchase, having been destroyed by fire, the said Holton and Barlow
rebuilt the same at an expense of $100,000, which improvements were made
with the full knowledge of said heirs, and without any objection on their part.
And that the said Martha Phipps and Mary Haile, now Mary Rice, by accepting
and receiving payments of money from the said Holton and Barlow upon the
said notes and mortgage, during the time between the death of the said Phipps
and Haile, and the last marriage of the said Mary, and when the said Martha
and Mary were of full age, which said payments were proved to have been
made and received, have further ratified and confirmed the said bond and the
said deed.

11

That said Holton and Barlow, principally by reason of such expenditures,

became largely indebted to the Agricultural Bank and the Planters' Bank, two of
the defendants, and to secure that indebtedness, the said Barlow, on the 5th of
May, 1838, executed to them a good and valid deed of mortgage, conveying to
them his undivided interest in said premises.

12

That the said Holton, in February, 1839, sold and conveyed his interest in said
premises to the said Demon B. Spencer, one of the defendants; that said

Spencer, in consideration of the terms of his purchase from Holton, did, on the
27th of July, 1839, convey the same, by a good and valid mortgage, to the said
Planters' Bank.
13

That the said Agricultural Bank and the said Planters' Bank are now in
possession of said premises as mortgagees, and by virtue of a good and valid
quitclaim deed from the said Sarah Gibson and her husband David H. Gibson.

14

That the said Holton and Barlow, and those claiming under them, were
unmolested in their possession, and unapprized of any supposed objection to
their title. That they have paid the whole of said purchase money.

15

Which testimony, as set forth herein on both sides, was all the testimony in the
cause.

16

The counsel for the said defendants here offered to read in evidence the said
bond for title, and the said deed herein before mentioned, in connection with
the foregoing proofs.

17

But to the reading of the same in evidence the said counsel for the said
plaintiffs objected, because he says, that at the days of the dates of the said
bond and of the said deed the said heirs, Martha, Mary, and Sarah, were under
coverture, and were infants under the age of twenty-one years, so that the said
bond and the said deed are absolutely void. The said judge did then and there
declare and deliver his opinion, that the objection, so taken by the said counsel
for the said plaintiffs, ought to be allowed; that the said bond and the said deed
ought not to be admitted in evidence, and did accordingly decide that the same
should not be read in evidence on the part of the said defendants; to which said
opinion of the said judge, the said counsel for the said defendants did then and
there, in due form of law, except, before the jury retired from their box, and
prayed that the said exceptions might be signed, and sealed, and made a part of
the record. And it is accordingly done.

18

S. J. GHOLSON. [L. S.]

19

May 24th, 1843.

20

To review this decision of the court below, the case was brought up to this
court.

21

It was argued by Mr. Mason (Attorney-General), for the plaintiffs in error, and

21

It was argued by Mr. Mason (Attorney-General), for the plaintiffs in error, and
Mr. Thomas J. Johnston and Mr. Crittenden, for the defendants in error.

22

Mr. Mason; for the plaintiffs in error, stated the case, and then proceeded.

23

I. The title, bond, and deed were admissible in evidence. The common law
imparted to the husband, as a necessary incident to the seisin he acquired of the
wife's freehold estate by the marriage, a power, by alienation, of converting her
interest in it to a mere right. Hence a conveyance by him of the fee operated a
discontinuance, and ejectment would not lie; although, by the statute of 32 Hen.
8, ch. 28, 6, explained by the statute of 34 and 35 Hen. 8, the act of the
husband alone was not permitted to have this effect, and a right of entry was
reserved to the wife, and to her heirs, on the death of the husband, it has never
been questioned that she might, after the termination of the coverture, confirm
her husband's deed. 1 Roper on Husband and Wife, 54, 55.

24

The deed from the husband is only a link in the chain of title, and was
necessarily admissible, in connection with other testimony, to establish an act of
confirmation by the wife, when sole and free from disability.

25

The reason assigned by the court below was wholly insufficient; neither the
infancy nor the coverture of the femes covert necessarily excluded the deed.

26

There are many cases in which the deed of a married woman binds her, without
confirmation, when sole, although, at its date, she was an infant; and the deed
of a husband for his wife's real estate may be confirmed, and pass the title.
Douglas's Rep. 53; Cowper's Rep. 202; 2 Peere Wms. 126. The deed from the
husband is the basis, or first link, in the chain of title, and ought not to have
been excluded. If the bond and deed had been admitted as evidence, and no
sufficient confirmation by the wife, when sole, had been shown, it would have
been competent for the court to charge the jury as to the sufficiency of these
instruments in law to bind the wife's interests.

27

The court erred in excluding evidence which of itself was insufficient, but
which, nevertheless, was competent.

28

II. It is submitted, that it appears on the record, notwithstanding this exclusion

of the first link in defendants' paper title, that the female plaintiffs had ratified
and confirmed the bon a fide sale of the fee simple property after their
disability was removed.

29

1. They received and gave acquittances of the purchase-money. They cannot be

29

1. They received and gave acquittances of the purchase-money. They cannot be

permitted to deny knowledge of the consideration for which the payments were
thus made. They had signed both bond and deed. The deed was acknowledged
by them, and their relinquishment made privily, with full explanation, and the
deed was of record.

30

2. The tenement on the premises was destroyed by fire, and they, free from
disability, stood by and permitted the grantees of their husbands and themselves
to erect buildings thereon, at a cost far exceeding the purchase-money, without
interposing, by any warning that the title made was objected to and its
confirmation denied; such acts, on the part of persons free from disability,
ought to be regarded as confirmatory of a defective bon a fide conveyance; and
the parties, although they be females, will not be permitted to recover the
property thus improved without objection on their part, and for which they have
themselves received the full payment of the purchase money.

31

III. The deed is the act of the femes covert; they are parties to it, executed it,
and the estate granted and intended to be conveyed was their property. The deed
is between the legal heirs of Adam Bower, deceased, of the first part. Martha,
wife of Phipps, Mary, wife of Haile, and Sarah, wife of Gibson, were the
children and heirs of Bower. They signed the deed, and their renunciation was
taken in substantial conformity with the law of Mississippi, and the thing
granted was their inheritance. The phraseology employed is not material. A
deed by an attorney in fact is valid, whether he signs as B. W., attorney for R.
C.; or R. C., by B. W., his attorney. 4 Hen. & Mun. 184.

32

The claim of title set up by two of these females, now that they are married to
other husbands, is sustained by the most refined and technical reasoning. The
printed argument of Mr. Johnston affords a specimen of this.

33

It is not denied, that, to bind a married woman by a deed executed with her
husband during coverture, she must have acknowledged it in substantial
conformity with the terms of the statute. The requisites are,

34

1. A previous acknowledgment made by her, on a private examination, apart

from her husband.

35

2. That she signed, sealed, and delivered the same as her voluntary act, freely,
without any fear or compulsion of her husband.

36

3. And a certificate thereof, written on or under the said deed of conveyance,

signed by the judge or justice before whom it was taken.

37

The statute of Mississippi does not prescribe the form of the certificate. The
guards thrown around the rights of married women are contained in these
requisites, and the deed is good and binding, if they have been substantially
observed.

38

In Virginia there is a similar statute, with an additional section, prescribing the

form of the wife's acknowledgment. Tucker, in his Commentaries, vol. 1, tit.
Deeds of Feme Covert, p. 267, after referring to these provisions of the Virginia
statutes, remarks:

39

'Here we see that the object of the law is to ascertain, by a privy examination of
the wife, apart from her husband, whether, in the execution of the deed
disposing of her rights, she exercises that free will which is of the essence of all
contracts. This is effected by an examination in court by one of the judges
thereof, or in vacation by two justices of the peace.' (One is sufficient in
Mississippi.) 'Now, upon well received principles, it is clear that this act must
be strictly pursued; for it is an innovation upon the common law; and,
moreover, it prescribes the mode in which a person may convey, who was
before disabled to convey. That mode must, therefore, be pursued; and as we do
not pursue it if we vary from it, so it follows that it should be substantially, at
least, complied with.'

40

Acts of justices of the peace, done in the county, are always viewed favorably;
and, if substantially conformable to law are held sufficient.

41

The certificate in this case is on the ninth page of the record. It is not denied
that the justice of the peace was duly authorized to act, and that his official
certificate was written on or under the deed. But it is objected, that he has not
done or certified what the law requires.

42

There is no objection that the same certificate embraces two official acts. The
first paragraph certifies the acknowledgment of all the parties to the deed, with
a view to its record. That was a separate and independent act.

43

The second paragraph or sentence of the certificate is the subject of dispute.

What does the justice certify?

44

1. That Martha Phipps, Sarah Gibson, and Mary Haile, wives of William M.

Phipps, William R. Haile, and David H. Gibson, having been examined

separate and apart from their husbands;
45

2. Acknowledged that they signed, sealed, and delivered the same as their act
and deed, free of fears, threats, or compulsion of their said husbands.

46

3. And these facts he certifies.

47

Now, is not this a substantial compliance with the statute?

48

The objection to the grammatical construction of this sentence does not appear
to me well founded. Its true reading is, that the justice certifies his having
examined the wives separate and apart from their husbands; and, on that
examination, the wives, thus being separate and apart from their husbands,
made the acknowledgment. Privy examinations in court and in the country have
been long practised. The terms are technical. It is against the influence of the
husband that the wife is protected; and an examination is privy or private,
within the statute, when he is not present. The casual presence of others would
not vitiate it; and there is no just reason to infer, in this case, that any one was
present. The statute requires a 'private examination, apart from the husband.'
The justice certifies that he made an examination, separate and apart from the
husband.

49

The statute requires a previous acknowledgment that she signed, sealed, and
delivered the same as her voluntary act, freely, without fear, threats, or
compulsion of her husband. The certificate is, that they acknowledged to have
signed, sealed, and delivered the same as their act and deed, free of fears,
threats, or compulsion of their husbands.

50

This court, in 12 Peters, 345, said, 'The law presumes a feme covert under the
coercion of her husband.' It is against this presumed influence that the privy
examination is intended to protect her, when the statute requires, that she shall
acknowledge the same as her voluntary act freely, without fear; and it means
nothing more than that she shall declare her act to have been done free from
such influences. This is done in the certificate, and the effective and essential
words of the statute are employed. Hepburn v. Dubois, 12 Peters, 345; Shaller
v. Brand, 6 Binney, 435; McIntire v. Ward, 5 Binney, 296; 1 Peters, 155.

51

There is no proof in the record that the femes covert were infants.

52

IV. It is objected that the acknowledgment of the femes is not recorded. By the

52

IV. It is objected that the acknowledgment of the femes is not recorded. By the
record, it appears that the deed, with the certificate, which was an essential part
of it, was received for record on the day after the execution; and, on the next
day, the clerk certifies that the within deed is recorded. It is an unauthorized
conclusion, that the certificate was not recorded as a part of the deed.

53

No such objection appears to have been taken below, and there is nothing in the
circumstances of this case to induce the court to presume defects which do not
appear to exist in favor of the plaintiffs. But no question arose as to the record
of the certificate. If the fact were so, it was sufficient; but the court, by refusing
to allow the deed to be read, deprived the defendants of the right to exhibit the
proof, which, it is confidently asserted, was at hand to perfect their case, so far
as the record of the certificate was required by law.

54

The defendants, bon a fide, bought and paid for the property of the femes. They
united in a bond and conveyance of the property; when relieved from disability,
they received the purchase money, and they stood by and permitted the
innocent purchasers of this property to put on it improvements at a cost of more
than one hundred thousand dollars, without interposing objection or assertion
of title; they have not proposed to return the purchase money, or to indemnify
against the enormous expenditure for improvements. It can hardly be, that,
under such circumstances, the claim of title set up by their subsequent husbands
can be successfully maintained by the refined and technical reasoning resorted
to.

55

Mr. J. J. Johnston, for defendants in error.

56

The exceptions to the decision of the court below were taken and were confined
to the rejection of two instruments of writing, which were offered in evidence
on behalf of the defendants, now the appellants; and, if they were properly
rejected, the judgment must be affirmed.

57

The first of these was a bond, and the second a deed, in alleged pursuance of it,
both purporting to have been executed, under coverture, by Mrs. Haile (now
Mrs. Rice) and Mrs. Phipps, to persons under whom the appellants claim. The
question of the title depends solely upon the validity of these conveyances.

58

I. 1. As to the bond, it is only necessary to refer to the case of Hickey's Lessee

v. Stewart et al., which was decided, upon able debate and ample deliberation,
at the last term of this court, wherein it was held, that an equitable title could
not be set up either to sustain or to defeat an action of ejectment. 3 How. S. C.
R. 760. Hence, had the bond been acknowledged by these married women, and

otherwise valid, it was properly rejected by the lower court.

59

2. The same ceremony of an acknowledgment, on a private examination, is

required, by the statute of Mississippi, in the allenation of equitable as in that of
legal estates, both kinds of estate being within the terms and meaning of the
statute:'No estate of a feme covert shall hereafter pass by her deed or
conveyance,' &c. (quoted hereafter). Howard and Hutchinson, 347. So, in Ohio,
leases by femes covert must be acknowledged. 6 Ohio R. 313. In this case,
there is no certificate or acknowledgment whatever of the bond.

60

3. The bond of a married woman is, upon the general principles of the law,
utterly void. 2 Kent, 168, 5th ed.; 6 Wend. 1; 1 Bailey, 184; 2 Story's Eq. 617; 5
Day, 492; 7 Connect. R. 128.

61

II. The deed was properly rejected upon three grounds:

62

1. Its intrinsic defect. Phipps, Haile, and Gibson grant, 'in right of their wives,'
but these wives are not parties to the deed. It is true, their signatures are affixed,
but their names are not in the body of the deed. Now, it is rather trite learning to
say, and to say here, that there must be a grantor, a grantee, and a thing granted,
to every deed that grants land; that a grantor is as necessary as a grantee or
thing granted; or that there is a place in a deed for the name of the party who
grants, and that this place is not the bottom of the deed. This is a good
conveyance of the life estates of Phipps, Haile, and Gibson; the two former
being dead, and their wives never having been made parties to it by apt words,
are not bound by it.

63

A deed of land, executed by husband and wife, but containing no words of

grant by the wife, does not convey her estate in the land, nor her right of dower.
3 Mason's C. C. R. 347.

64

Where there are no grantors, there is no remedy even in equity 10 Ohio R. 305.

65

A deed is invalid, though the feme covert be named in the premises, and her
signature be affixed, if not named elsewhere. 7 Ohio R. 195.

66

2. The deed was properly rejected, because of the defective certificate of

examination and acknowledgment.

67

The statute of Mississippi is as follows (Howard and Hutchinson, 347):

68

'No estate of a feme covert in any lands, tenements, or hereditaments, lying and
being in this State, shall hereafter pass by her deed or conveyance, without a
previous acknowledgment made by her, on a private examination, apart from
her husband, before a judge, &c., that she signed, sealed, and delivered the
same as her voluntary act and deed, freely, without any fear, threats, or
compulsion of her husband, and a certificate thereof written on or under said
deed or conveyance, and signed by the judge or justice before whom it was
made; and every deed or conveyance so executed and acknowledged by a feme
covert and certified as aforesaid shall release and bar her right of dower in the
lands, tenements, and hereditaments mentioned in such deed or conveyance.'

69

It does not appear from the certificate in this case, that the acknowledgment of
the married women was taken on a private examination, which is required by
the statute.

70

In the first sentence of the certificate, the husbands and their wives all appear
and act together; in the second, the wives all appear and act together. For it is
stated,'And Martha Phipps, Sarah Gibson, and Mary Haile, wives of William
M. Phipps, William R. Haile, and David H. Gibson, having been examined,
separate and apart from their husbands, and acknowledged that they signed,'
&c. If grammatical construction require the insertion of the word 'having'
before the word 'acknowledged,' it is questionable whether there be any
affirmative statement of the acknowledgment at all. If the word 'separate,'
which is not in the statute, and imparts no vigor to its phraseology, be stricken
out, the certificate will be,'And Martha Phipps, Sarah Gibson, and Mary
Haile, wives, &c., having been examined apart from their husbands,' &c. It is in
vain to call this an 'acknowledgment made by her (them) on a private
examination'; for it eviscerates the very vitals of the statute. The examination
may have been not only apart and separate from their husbands, but private, or,
in the language of Coke, solely and secretly, and yet the acknowledgment may
have been made not only in the presence of the relatives, friends, and
dependents of their husbands, but in that of the husbands themselves. The
interpolation of the word 'separate' imparts no strength to 'apart,' nor are they,
separate and apart, or united, equivalent to private; separate having reference to
the position of husband and wife, while private indicates the position of the
magistrate and the wife in reference to the whole world besides. The two
houses of Congress are separate and apart, but not very private; the chief-justice
and his associates are separate and apart, yet together constitute one public
bench. The examination of married women, separate and apart from their
husbands, though in the company of each other, would not be regarded as a
compliance with the statute; yet it is obvious from the face of the certificate,
that the three sisters, Mrs. Phipps, Mrs. Gibson, and Mrs. Haile, were all of

them together, acting, acknowledging, and being examined; and, for aught that
appears to the contrary, may have been surrounded, at the time of the
acknowledgment, by the friends, relatives, and dependents of their husbands,
and of their grantees, against whose arts and influences, if it do not appear by
the certificate that the rights of the married women have been shielded and
protected, the statute become a dead letter, and the private examination a
mockery. The case of Jones v. Maffett and wife, 5 Serg. & Rawle, 534, was
decided upon the ground that the Pennsylvania statute did not require a privy
examination, but that it was sufficient if the feme covert were examined
'separate and apart from her husband.' There is a mutilated quotation, I believe,
in the same case, of the maxim, 'omnia presumuntur rite esse acta,' which is
severed from donec probetur in contrarium. The certificate annihilates the
presumption.
71

The disability of coverture can only be overcome by the precise means allowed
by law for the alienation of the real estate of married women (2 Story's Eq.
617), of which an essential part is a private examination, derived from the
English mode of conveyance by fine, and rescued from its wreck. Lord Coke
thus discourseth of the same:

72

'The examination must be solely and secretly, and the effect thereof is, whether
she be content of her own free good-will, without any menace or threat, to levy
a fine of these parcels, and name them to her, every thing distinctly contained in
the writ, so as she perfectly understand what she doth; and if the judge doubteth
of her age, he may examine her upon her oath.'2 Inst. 515; 6 Wend. 12.

73

It is a general principle of American law, that all deeds of married women,

without a privy examination, are void; 2 Lomax's Dig. 18; and that all acts not
conformable to acts of Assembly are void; ibid. 52. Some States provide,
simply, that there shall be a private examination upon the execution of a deed
by a feme covert, and leave every thing else to the integrity and intelligence of
the offieers authorized to conduct it; others prescribe the acts to be performed
by the officer, such as reading the deed, making known its contents, or
explaining its effects (12 Leigh, 464; 1 Binney, 477; 6 Serg. & Rawle, 50),
without the performance of which the deed is inoperative and void. But it is
obvious that the requirement of the private examination alone, and the
requirement of the acts which constitute it, are the same thing,the object of
both being to remove the disability which results from the matrimonial
connection, while they throw an intrenchment around the rights of the feme
covert, who is hardly considered, in contemplation of law, to have a separate
legal existence, her husband and herself constituting but one person. The sacred
injunction, Whom God hath joined together, let no man put asunder, is, pro hac

vice, disregarded, and the minister of the law is clothed with a confidence
which is denied to the husband. The inefficient or negligent discharge of the
duties of the office, which tend to its degradation, will neither be sustained by
subtle construction, nor receive the countenance of courts of justice.
74

The words of the certificate are, that 'they signed, sealed, and delivered the
same as their act and deed, free of fears, threats, or compalsion of their said
husbands'; the language of the statute is, that 'they signed, sealed, and delivered
the same as their voluntary act and deed, freely, without any fear, threats, or
compulsion of their said husbands.' The omission of two words of such
pregnant import, emphatically reiterated, as if to stamp freedom of volition not
only on the act itself, but the manner of the act, is, I humbly submit, so utterly
fatal to the certificate, as to render any further remarks unnecessary, except
that, though an act done by a person capable of contracting would be presumed
to have been voluntary, yet this is not that case; and that each word of the
certificate may be perfectly true, yet the deed may have been signed reluctantly
and not voluntarily, sealed reluctantly and not voluntarily, and delivered
reluctantly and not voluntarily.

75

III. The acknowledgment of the femes is not recorded, the certificate of the
clerk embracing the deed only.

76

Be it remembered, that the deed was not proved as an original; to be read

otherwise than as such, both the acknowledgment and the certificate must be
recorded. Howard and Hutchinson, 343.

77

It is not the fact, but the recording of the fact, that makes the deed effectual.
Tate's Dig. 170; 1 Pet. 138, 140.

78

It is in the nature of a judicial proceeding, of which there must be a record.

79

IV. Confirmation. It may yet be contended, that the bond, or the deed, or the
mortgage, was confirmed, after disability removed, and that the mode of
confirmation was the receipt of money upon the notes given for the property
for which suit was brought.

80

Void instruments are incapable of confirmation (Story's Cont. 47; Plowden's

R. 397), which must be by an instrument of as high a nature. 8 Taunt. 36; 10
Peters, 59.

81

A lease, which is void as to a remainder man, cannot be set up as a defence to

81

A lease, which is void as to a remainder man, cannot be set up as a defence to

an action of ejectment brought by him, although it be proved that he received
rent, or suffered the tenant to make improvements. Law Lib., Oct., 1845, p. 300;
Doug. 50.

82

Confirmation cannot be, unless with a knowledge of their rights. 5 Ohio R. 255.

83

To make an act amount to redelivery, there must be clear knowledge. 5 Dana,

234.

84

It must be known that receipt of money made good the redelivery 9 Dana, 477.

85

The act relied on here was the receipt of money upon the notes, without any
reference whatever to the bond, deed, or mortgage, by payor or payee.

86

Upon the mortgage, which was not offered in evidence, no question was raised
in the court below; of course, none can be raised or considered here. 11 Wheat.
199.

87

The time when, and the character in which, this money was received will shed
light upon the intention with which it was received, and the effect of its receipt.

88

The defects in the deed had not been ascertained when the payments were
made. The bond was understood to be merged in the deed, and the deed was
believed to be valid; hence there could have been no intention to confirm what
was already considered as obligatory. Suit was brought as soon as the deed was
discovered to be defective. The effect of the receipt of money in a fiduciary
character cannot prejudice the private rights of Mrs. Rice or Mrs. Phipps. By
law, they could only receive it thus, since they had no right to the personalty of
their respective husbands; upon which, morecover, there was a statutory lien for
their debts. The law will not put them in the predicament of saving their private
rights by faithlessness to their trust, or losing their private rights by a faithful
performance of the duties of executorship or administration.

89

There was neither instrument, act, nor intention of confirmation, nor knowledge
of their rights, till suit was brought.

90

Mr. Crittenden, on the same side.

91

It might be dishonorable for any parties except married women to try and get
this property back; but the law is not friendly to their rights, and in nine cases

out of ten, they do not know what they are conveying away when they execute
deeds. In this case, the property belonged to the wife, but she is not named as a
grantor in the deed, and therefore is not bound by it. 3 Mason's C. C. R. 347.
92

(Mr. Crittenden then examined the certificate of the magistrate, which he

contended was not sufficient.)

93

It is argued that a subsequent acceptance of money by these wives, after the

death of their husbands, reacts upon the original contract and confirms it. But it
cannot make a deed good which is intrinsically void. Instruments may be
confirmed in some cases, it is true, but only when they are valid for some
purposes, and not where they are wholly void. And besides, the confirming act
must be performed with the intention and purpose of producing such a
consequence. It cannot be effected incidentally. The mere receipt of money is
not sufficient.

94

Mr. Chief-Justice TANEY delivered the opinion of the court.

95

This being an action of ejectment, the only question between the parties is upon
the legal title.

96

It is admitted in the exception, that Mary Rice and Martha Phipps, lessors of
the plaintiff, were each of them, as heirs at law of Adam Bower, entitled to an
undivided third part of the premises mentioned in the declaration, in fee simple.
In order to shaw title out of them, the plaintiffs in error relied upon the bond of
conveyance and deed, mentioned in the statement of the case, both of which
were signed and sealed by these lessors of the plaintiff, but were executed
while tney were femes covert.

97

As regards the bond, it would not have transferred the legal title, even if all the
parties had been capable of entering into a valid and binding agreement. But as
to the femes covert who signed it, it was merely void, and conferred no right,
legal or equitable, upon the obligees.

98

The deed, also, is inoperative as to their title to the land. In the premises of this
instrument, it is stated to be the indenture of their respective husbands in right
of their wives, of the one part, and of the grantees, of the other part,the
husbands and the grantees being specifically named; and the parties of the first
part there grant and convey to the parties of the second part. The lessors of the
plaintiff are not described as grantors; and they use no words to convey their
interest. It is altogether the act of the husbands, and they alone convey. Now, in

order to convey by grant, the party possessing the right must be the grantor, and
use apt and proper words to convey to the grantee, and merely signing and
sealing and acknowledging an instrument, in which another person is grantor, is
not sufficient. The deed in question conveyed the marital interest of the
husbands in these lands, but nothing more.
99

It is unnecessary to inquire whether the acknowledgment of the femes covert is

or is not in conformity with the statute of Mississippi. For, assuming it to be
entirely regular, it would not give effect to the conveyance of their interests
made by the husbands alone. And as to the receipt of the money mentioned in
the testimony, after they became sole, it certainly could not operate as a legal
conveyance, passing the estate to the grantee, nor give effect to a deed which as
to them was utterly void.

100 The judgment of the Circuit Court is therefore affirmed.